Legislation passed by the Senate this week and headed for the House – and a possible presidential veto – could allow the US military to detain American citizens indefinitely.

The National Defense Authorization Act covering $662 billion in defense spending for the next fiscal year includes a provision requiring military custody of a terror suspect believed to be a member of Al Qaeda or its affiliates and involved in attacks on the United States.
A last minute amendment allows the president to waive the authority based on national security and to hold a terror suspect in civilian rather than military custody. But the bill would deny US citizens suspected of being terrorists the right to trial, subjecting them to indefinite detention, and civil libertarians say the amendment essentially is meaningless.

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“This bill puts military detention authority on steroids and makes it permanent,” Christopher Anders, senior legislative counsel of the American Civil Liberties Union, said in a statement. “If it becomes law, American citizens and others are at real risk of being locked away by the military without charge or trial.”

Libertarians and conservatives wary of big government are speaking out against the bill as well.

"If the president thinks you are a terrorist, let him present charges and evidence to a judge,” Libertarian Party Chair Mark Hinkle said in a statement Friday. “He has no authority to lock you up without any judicial review, just because he and Congress believe he should have unlimited power. That is the kind of power held by tyrants in totalitarian regimes. It has no place in the United States.”

Echoing arguments against federal government power made by his father, presidential candidate Rep. Ron Paul (R) of Texas, Sen. Rand Paul (R) of Kentucky spoke forcefully against the measure: “We are talking about people who are merely suspected of a crime, and we are talking about American citizens. If these provisions pass, we could see American citizens being sent to Guantánamo Bay.”

Sen. Dianne Feinstein (D) of California likens the measure to former president Franklin Roosevelt’s ordering the incarceration of US citizens of Japanese descent during World War II.

"We are not a nation that locks up its citizens without charge, prosecution, and conviction,” she said during Senate debate.

"This constant push that everything has to be militarized – I don't think that creates a good country," Feinstein argued. "Because we have values. And due process of law is one of those values. And so I object, I object to holding American citizens without trial. I do not believe that makes us more safe."

Making the country more safe from possible attack is exactly the point, counters Sen. Lindsey Graham (R) of South Carolina, a former military lawyer. What the measure does, Graham said, is “basically say in law for the first time that the homeland is part of the battlefield.”

“It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

The issue is not being debated along party lines in Congress.

Senate Armed Services Committee Chairman Carl Levin (D) of Michigan (liberal on most issues and a friend of the Obama administration) and senior Republican committee member Sen. John McCain of Arizona forcefully argued for the bill.

"Al Qaeda is at war with us," said Sen. Levin. "They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said, and I am going to read these words again, 'There is no bar to this nation's holding one of its own citizens as an enemy combatant.'"

This coming Monday, a tea party group plans to protest in Sen. McCain’s home state.

“When it comes to personal liberty and violation of every citizen’s Constitutional rights, Republicans are willing to take a stand against one of their own if a major mistake has been made," says protest organizer Jeff Bales, a member of the Pima County, Arizona, Republican Executive Committee.

"'Innocent until proven guilty' is essential to our legal system and American way of life,” says Mr. Bales. “The Senate Armed Services Committee's legislation violates fundamental values. It is unconstitutional and must be defeated. We cannot allow America to go further down the road of becoming a police state.”

Some opponents of the new proposal are raising the Posse Comitatus Act of 1878, which restricts the use of military forces in domestic law enforcement.
The Obama administration “strongly objects” to the military custody provision, the White House said in a statement Friday. “It would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

But the basis for the veto threat is not so much concern for civil liberties as it is for presidential power in such cases.

"Counterterrorism officials from the Republican and Democratic administrations have said that the language in this bill would jeopardize national security by restricting flexibility in our fight against Al Qaeda," White House press secretary Jay Carney said. “By ignoring these non-partisan recommendations, including the recommendations of the secretary of defense, the director of the FBI, the director of national intelligence, and the attorney general, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy.”

The bill was originally suggested as a means to 'expedite' cases of domestic terrorism, or where US citizenship was involved as in the case of Awlaki that brought up all sorts of legal questions as to what the US government could do against a citizen.

Other groups however bring up the sheer scope and breadth of power this bill might potentially bring, especially in regards to the 'rights' of citizens with regards to due process and such.

There is division and opposition to this from both 'parties' and the White House has in particular shown opposition against the military custody portions and vowed to veto it if it comes around. For the time being it heads to the House.

Sen. Dianne Feinstein (D) of California likens the measure to former president Franklin Roosevelt’s ordering the incarceration of US citizens of Japanese descent during World War II.

"We are not a nation that locks up its citizens without charge, prosecution, and conviction,” she said during Senate debate.

"This constant push that everything has to be militarized – I don't think that creates a good country," Feinstein argued. "Because we have values. And due process of law is one of those values. And so I object, I object to holding American citizens without trial. I do not believe that makes us more safe."

Yeah, that she did. I was going to bring up the vote roll before, but I had to leave in a bit of a hurry when I was finishing up the post. There was also an attempt to amend the bill, especially the parts concerning detainment, that was defeated in the Senate, 38-60, with 2 abstentions.

This amendment would have (for the most part) removed the controversial detainment portions that was thrown in there, but with its defeat there really wasn't much to do.

The reason for the high, final vote, was what the rest of the bill entails.I must point out that this 'bill' arrives yearly, and is meant to fund the operations of the DoD. The reason why this was problematic was because of the amendment proposed concerning the detainment of citizens. The counter-amendment was meant to remove this, but it fell through.

And so we enter into a classic 'tactic' of politicing in the legislature. Package unfavorable and controversial proposals in a routine vote, particularly in stuff regarding say, Defense or social security and medicare. In this regard a straight 'no' vote would have caused problems with funding and would have unleashed posturing (you don't support the troops, do you want to make our shores exposed to terrorism? etc.), but still, just shows the backbone of some of these guys when push comes to shove.

It truly is a sad state of affairs when something like this gets passed in the Senate. I have never understood the need for congressional or senate members to attach such unwanted amendments to routine bills just in a lame ass attempt to get them passed. Hopefully this will not become law since it still has to pass the House and then be signed by the President.

Now for those of you keeping track, the bill is currently in committee to present a final form to the White House. I was wrong earlier, the the House version already passed back in this summer.

As such the Senate's passage means its in committee. We might not see it again for a few days but it'll be back around if it manages to emerge from there.

Just to point out however, with the attention this bill has getting apologetics has also kicked in. The main one is that this bill infact doesn't affect citizens. This is true... to an extent. While there is a provision in section 1032 that says that this bill doesn't override existing laws with regards to citizens, this only stretches so far as what the military can do on its own. If, however, an executive order is issued this no longer matters.

Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.

But you don’t have to believe us. Instead, read what one of the bill’s sponsors, Sen. Lindsey Graham said about it on the Senate floor: “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

There you have it — indefinite military detention of American citizens without charge or trial. And the Senate is likely to vote on it Monday or Tuesday.

I'll keep an eye on it and see what happens in committee (The Stop Online Piracy Act is also at this phase). However it'll probably go through there with no problem. The Committee in this case will bring together the armed forces committees from House and Senate- in this case Senators McCain (R-AZ) and Carl Levin (D-MI) and Representatives McKeon (R-CA) and Smith (D-WA). Of those all except Smith have supported this bill, so it'll probably go through that way.

In such case it'll end up on the President's desk. Now we'll see if whether or not a veto'll occur. The problem is here that a veto of the bill itself also entails the defense spending portions too- and particularly in an election cycle I think (may'be he'll prove me wrong, but I doubt it) that Obama won't veto it.

This bill actually changes nothing. The military has had authority to detain US citizens since 2001. All this would do, as far as I can tell, is codify that ability. The scope of the authority is actually quite limited, as has yet to be exercised against a US citizen who was not also classified as an "enemy combatant" or the like.

Fun Fact: 18 U.S.C. § 1385 (commonly known as the Posse Comitatus Act) only prohibits the use of the United States Army and its offspring, the Air Force, for domestic law-enforcement purposes. It is only by the grace of the Secretary of Defense (whose office has issued a directive to this effect) that the Navy and Marine Corps are likewise prohibited. The Coast Guard is exempted completely, and governors may use the National Guard for law enforcement action (though the President may not).

C38368;5593269This bill actually changes nothing. The military has had authority to detain US citizens since 2001. All this would do, as far as I can tell, is codify that ability. The scope of the authority is actually quite limited, as has yet to be exercised against a US citizen who was not also classified as an "enemy combatant" or the like.

Fun Fact: 18 U.S.C. § 1385 (commonly known as the Posse Comitatus Act) only prohibits the use of the United States Army and its offspring, the Air Force, for domestic law-enforcement purposes. It is only by the grace of the Secretary of Defense (whose office has issued a directive to this effect) that the Navy and Marine Corps are likewise prohibited. The Coast Guard is exempted completely, and governors may use the National Guard for law enforcement action (though the President may not).

As things currently stand though, certain things towards detainment of citizens like warrants, due process, and other things still stand so long as the constitution is still in effect, and what ever that is left. Especially if, as previous experience may show, that the only grounds for this detainment to kick in is under suspicion of terrorism.

Directing the military to 'detain' individuals with American citizenship indefinitely and bypass the legal apparatus all together hasn't been done or considered in anyway before.

The military has had the power to engage in extraordinary activities though some orders passed after 2001 like the "Authorization for Use of Military Force Against Terrorists" which set up the whole idea of taking action against anyone deemed a 'terrorist'. But this one explicitely leaves open the possibility for it to be directed against citizens, if the need arises. After what was brought up with Awlaki there is a need to expedite this process from their end.

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